CITATION: Wilson v. Wickham, 2017 ONSC 5279

COURT FILE NO.: FS-15-0023-01

DATE: 2017 09 05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DON WILSON

Self-represented

Applicant

• and -

DIANE WICKHAM

Self-represented

Respondent

HEARD: September 1, 2017, at Brampton, Ontario

Price J.

Reasons For Order

OVERVIEW

1Mr. Wilson has moved for the second time to vary the Order of Justice Wein, made November 28, 2013, which granted the parties joint custody of their two children, Sydney and Caley, on terms whereby they were to reside, during their academic sessions, with Mr. Wilson in Brampton during the week, and on 3 weekends each month, with Ms. Wickham in Orangeville. Justice Wein ordered Mr. Wilson to perform the driving for pick-ups and drop-offs to ensure that the girls spent equal time with each parent. Mr. Wilson’s first motion to change resulted in a variation by Justice Baltman dated February 25, 2016, which advanced the time when Mr. Wilson’s picked up time the girls from Monday morning to Sunday evening, a change which Mr. Wilson had unilaterally made over a year earlier, in breach of Justice Wein’s Order. In his second motion to change, Mr. Wilson seeks to further erode Ms. Wickham’s time with the children by formalizing a change in the children’s access from three weekends per month to alternate weekends, which he unilaterally implemented over a year ago by failing to drive the girls to Orangeville on the schedule which Justices Wein and Baltman ordered.

2Ms. Wickham now moves to have Mr. Wilson found in contempt for failing to drive the children to Orangeville, which she says has damaged the children’s relationships with her. For the reasons that follow, I find that Mr. Wilson is in contempt, and that no order that the court could make, other than one that changes the girls’ residence to Ms. Wickham’s home in Orangeville, is likely to bring about compliance with Justice Wein’s Order. If Mr. Wilson’s contempt of that Order is permitted to continue, it is likely that the children’s, and particularly Caely’s, relationship with Ms. Wickham will be permanently damaged.

3For the next four years, Caely, who is now 14 years old, needs to be living with someone who respects women, and who respects her mother. Mr. Wilson is not that person.

4Carey, and to some extent, Sydney, need to know that the Court respects their mother and is prepared to entrust them to her care. Ms. Wickham has done nothing to disqualify herself from that responsibility. Her ability to perform that role has been undermined by Mr. Wilson, on multiple occasions and in multiple ways, as described below. It is in Caely's and Sydney's best interest that this stop, and that the girls be restored to Ms. Wickham's care.

BACKGROUND FACTS

5The parties have two children, both daughters, namely:

a) Sydney Wilson, who is now 18 (born June 11, 1999), and is beginning College this month; and

b) Caely Wilson, who is now 14 (born July 17, 2008), and is beginning grade 9 this month.

6Following a trial in 2013, Wein J. made a final Order granting the parties joint custody of the children. Justice Wein directed that during the academic session, the children were to reside on weekdays with Mr. Wilson at his home in Brampton, where the girls attended school, and on three weekends per month, with Ms. Wickham at her home in Orangeville. She ordered that Mr. Wilson drive the girls back and forth to Orangeville for their weekend access with their mother.

7In the present case, Mr. Wilson sent an e-mail to Ms. Wickham on November 14, 2014, stating that he would not be dropping the children off at her home effectively immediately, and indefinitely, notwithstanding that the court order required that he drop the children off to her on Friday evening. He sent her a registered letter approximately four days later stating that he would no longer be dropping the children off for her weekend access. He repeated this notification on November 24, 2014, notwithstanding her pointing out on November 21 that his intended action would be in violation of the court order.

8Mr. Wilson began picking up the children on Sundays at times convenient to him instead of on Monday mornings, as Justice Wein’s Order required. He continued this breach of five months, unilaterally shortening Ms. Wickham’s access times. Finally, Mr. Wilson made a motion in 2015 to change Wein J.’s Order.

9Following a hearing of that motion, Ms. Wickham consented to a variation in the pick-up time of the girls to Sunday, but otherwise left Wein J.’s Order unchanged. Justice Baltman noted, in her endorsement on February 25, 2016, “I note with some dismay that [Mr. Wilson] unilaterally made that change himself over a year ago, in defiance of Wein J.’s Order.”

10Mr. Wilson made a second motion in 2017 to change the Order of Wein J. He seeks an Order granting him sole custody and reducing his child support obligations.

11At a Case Conference on May 26, 2017, Ms. Wickham complained that Mr. Wilson failed to drive the children to Orangeville, as a result of which she was unable to exercise her access to the children, as ordered by Justice Wein. Mr. Wilson acknowledged that he had not employed any punishments or rewards to encourage the children to comply with the access order. The Court warned Mr. Wilson to comply fully with that Order.

12At a hearing on July 13, 2017, the Settlement Conference could not proceed because Mr. Wilson had failed to file his Settlement Conference Brief. Before the Court adjourned the Conference to August 1, 2017, Ms. Wickham complained that Mr. Wilson continued to breach Wein J.’s Order, and had failed to drive the children to Orangeville on May 27, 2017, the very day after the Court had warned him to comply fully with Wein J.’s Order.

13Mr. Wilson acknowledged that he had not driven them on that day because they had slept in. The Court granted Ms. Wickham leave to make a motion to have Mr. Wickham found in contempt. The Court heard that motion today.

14At the Settlement Conference on August 1, 2017, the trial of Mr. Wilson’s motion to vary Justice Wein’s Order was scheduled to take place on the week of March 19, 2018, that being the earliest date the Court could accommodate a trial of the 3 ½ day duration that the parties estimated would be required.

THE ISSUE

15The Court must determine whether Mr. Wilson is in contempt of the Order of Justice Wein and, if so, what sanction or other consequences should be imposed.

16Ms. Wickham submits that the Order of Justice Wein was clear and unequivocal and that Mr. Wilson has frequently breached the Order by failing to drive the children to Orangeville, thereby frustrating the access she was to exercise pursuant to Justice Wein’s Order.

17Mr. Wilson acknowledges that he has failed to drive the children to Orangeville on multiple occasions, but asserts that this resulted from the children’s unwillingness to comply with the access schedule. Mr. Wilson acknowledged at the hearing on July 13, 2017, that he had never imposed any punishments or given the children any rewards to encourage them to comply with the access schedule.

ANALYSIS AND EVIDENCE

18For the reasons that follow, I make the following findings beyond a reasonable doubt:

a) Justice Wein’s Order is clear and unequivocal and requires Mr. Wilson to drive the children to Orangeville three weekends each month to enable Ms. Wickham to exercise access to them.

b) Mr. Wilson has failed to comply with the Order. He has acknowledged not driving the children to Orangeville, and failing to employ punishments or rewards to encourage them to go there.

c) Mr. Wilson’s failure to employ the ordinary tools of his authority as a parent to require the children to comply with the access schedule was in deliberate breach of Justice Wein’s Order, and had the inevitable effect of undermining the intent of the Order, which was to maximize the children’s contact with both parents.

19I further find, for the reasons that follow, that it is in the best interests of Caely Wilson that she reside with Ms. Wickham in Orangeville and have access to Mr. Wilson on alternate weekends and on two evenings per week. This will have the effect to ensuring that the children have effective access to both parents.

ANALYSIS AND LAW

a) Is Mr. Wilson in contempt of Justice Wein’s Order?

Legislative framework

20The Family Law Rules provide that an order may be enforced by a contempt motion, even if another penalty is available.¹

21The Children’s Law Reform Act provides that the court shall not vary an existing order regarding the custody of the children unless there has been a material change of circumstances that affects or is likely to affect the best interests of the child.²

22The court makes orders concerning the custody of a child and access based solely on “the best interests of the child”. It determines what is in the child’s best interests by reference to the factors set out in section 24 of the Children’s Law Reform Act (the “CLRA”).³

23The Supreme Court of Canada in Young v. Young and Gordon v. Goertz held that a child’s best interests must be ascertained from the perspective of the child. Parental preferences and rights do not play a role in the analysis, except to the extent necessary to ensure the best interests of the child.⁴

24Under sections 20 of the CLRA, both parents are equally entitled to custody of their child. Where the parents live separate and apart, and the child lives with one parent with the consent of the other, the parents’ entitlement to access continues, with each having the right to visit with the child and obtain information about the child’s health, education, and welfare.⁵

25Section 24(1) of the CLRA provides as follows:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) The love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) The child’s views and preferences, if they can reasonably be ascertained;

(c) The length of time the child has lived in a stable home environment;

(d) The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) The permanence and stability of the family unit with which it is proposed that the child will live;

(g) The ability of each person applying for custody of or access to the child to act as a parent; and

(h) The relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.⁶

Jurisprudence

26The court applies a three-part test to determine whether a party is in contempt:

(a) The order that was breached must state clearly and unequivocally what should and should not be done;

(b) The party who disobeys the order must do so deliberately and wilfully;

(c) The evidence must show contempt beyond a reasonable doubt.⁷

27In Karar v. Ella, (2016), Calum MacLeod J. found the mother in contempt for breaching a court order granting the father access to their children.⁸ There was abundant evidence that the mother had failed to comply with the court order with respect to access and interfered with the father’s relationship with the children. Although there were two children, the motion primarily concerned a seven year old child who was apparently refusing to go with his father. The mother had produced a video showing the young child yelling at her father and refusing to go with him.

28Justice MacLeod stated:

They are nevertheless deeply disturbing videos. What they show is a 7 year old child who has been inappropriately empowered and allowed to yell at her father to shut up and go away while being filmed and recorded. There is no evidence in the video of any reasonable effort by the adults in the house to calm the child or reassure her or tell her she must go.⁹

29Justice MacLeod notes that in Godard v. Godard, 2015 ONCA 568, the Court of Appeal, in a similar situation, had upheld the finding of contempt where the mother empowered a twelve year old child to refuse to go with her father. In Godard, the motion court judge had held that by refusing to abide the access order and leaving it up to the child, the mother was "effectively abandoning her parental authority on the issue of access".¹⁰ The same had occurred in the motion before Justice MacLeod. He stated:

[T]he parent cannot leave the decision to comply with the access order up to the child. The parents are not obligated to do the impossible. They are required to do all that they reasonably can to comply with the order. Failure to take concrete measures to apply normal parental authority to have the child comply with the access order can constitute contempt.¹¹

30Justice MacLeod notes that the remedies for contempt are various. He provided the mother with an opportunity to purge her contempt crafted a remedy that did not "inadvertently punish the children or for that matter expose them to further conflict or risk".¹² He adjourned the motion to another day and required additional information from third parties and the parents before dealing with penalty or sanction.¹³

31Mr. Wilson acknowledges in his affidavit dated July 31, 2017, that the girls have been going to their mother’s home on alternate weekends for over a year. On May 26, 2017, the Court warned Mr. Wilson to comply fully with Wein J.’s Order. He failed to drive the girls to Orangeville again the following day, stating that they slept in and did not want to go.

32Mr. Wilson has not offered any reasonable explanation for failing to comply with Wein J.’s Order. During the summer months, the children have exercised access to each of the parents on a week-about arrangement, in accordance with Justice Wein’s Order. Ms. Wickham asserts, based on her conversations with the girls, that their failure to come to Orangeville during the academic session did not result from their unwillingness to go, but from Mr. Wilson’s unwillingness to drive them.

33These kinds of deteriorating situations which undermine one parent’s relationship with the children must be halted. In the present situation, where the earliest date that could be scheduled for a hearing of Mr. Wilson’s motion is in March of 2018, the issue of custody and access must be reviewed without delay to ensure that the children’s access to both parents is safeguarded.

Intention required for contempt

34The court does not require proof that an alleged contemnor intended to put herself in contempt in order to make a finding of contempt. It must only be established that she deliberately, wilfully, or knowingly did some act which amounted, objectively, to a breach of a court order of which she had knowledge.¹⁴

35Proof of recklessness satisfies the necessary intent to disobey a court order and supports a finding of contempt. Wilful intent or malice, i.e. a deliberate intent to defy an order, is not necessary to establish a civil contempt, though its existence may be relevant to penalty. It is enough that a party knew of the terms of the order and intended to do those things that, objectively speaking, constituted the breach.¹⁵

36A finding of contempt does not require the court to find that the defendant intended to disobey or flout an order of the court: “the offence consists of the intentional doing of an act which is, in fact, prohibited by the order. The absence of the contumacious intent is a mitigating, but not an exculpatory, circumstance.”¹⁶

37The standard of intention is knowledge of the terms of the order and knowingly or intentionally doing an act which is, objectively speaking, in contravention of those terms. In Brooks v. Vander Muelen, in 1999, the Manitoba Queen’s Bench stated, concerning contempt:

The standard of proof is that a breach be proved beyond a reasonable doubt. The standard of intention is knowledge of the reasons for the order and contravention of the order. Direct intention to disobey the order is not required. Wilful disregard is sufficient. “Wilful” is intended to exclude only casual, accidental, or unintentional acts of disobedience.

An individual need not be found in breach of a specific term in a court order. It is sufficient if the actions are “designed to obstruct the course of justice by thwarting or attempting to thwart a court order”. Evidence of contempt in family matters should be “clear and unequivocal”. Restraint is appropriate in making such findings. If a custodial parent can show that she acted at all times in the best interests of the child and not with the intention of disobeying the court’s order out of self-interest, the courts have been reluctant to make findings of contempt even if custodial parents can be said to be acting only out of spite and hostility.¹⁷ [Emphasis added.]

38The only thing that can save Mr. Wilson’s behaviour from amounting to contempt is legal justification, in the form of a serious risk of harm to the children, which I find to be absent. He offers no reasonable explanation for his unilateral change to the girls’ access to their mother by reducing the access from three weekends per month to alternate weekends for more than a year before bringing his most recent motion. He acknowledged on July 13, 2917, that he had employed no punishments and had offered no rewards to the girls to ensure that they complied with the access Order.

39The rationale that Mr. Wilson offered for his failure to drive the girls to Orangeville on May 26, 2017, was that they wanted to sleep in following Sydney’s prom and not travel the 45 minutes from Brampton to Orangeville, was no justification. I do not accept Mr. Wilson’s explanation that he tried to contact Ms. Wickham. Ms. Wickham states, in her affidavit dated August 3, 2017, that she did not receive any phone calls or e-mails from Mr. Wilson or the girls on May 26th and Mr. Wilson has not produced any.

40Ms. Wickham states that she received an e-mail from Mr. Wilson on Saturday, May 27, 2017, at 9:40 a.m., stating that he had “tried to wake the girls up but that they were too tired.” In the e-mail, Mr. Wilson again put the responsibility for the visit on the children by saying that he did not have the authority and that it was up to the children to contact her and tell her what they wanted to do. Contrary to Mr. Wilson’s implication that he made up Ms. Wickham’s lost weekend, Ms. Wickham states that there was no make-up weekend and that Mr. Wilson’s failure to comply with the Order resulted in her not seeing the girls for three consecutive weekends as the Order directed.

41Mr. Wilson’s failure to insist that the children comply with the parenting schedule undermined their relationship with their mother which, presumptively, was contrary to their best interests. Wein J.’s order that the parents to reside with their mother three weekends per month was made in the children’s best interests. In failing to comply with that order, Mr. Wilson acted contrary to the children’s best interests.

42Justice Spence, in R.(S.) v. S.(J.), in 2013, rejected the father’s attempt to justify his disobedience of an order granting the mother access, by blocking her access to the parties’ two children on two occasions. There was no dispute that the father had prevented the mother from exercising her court-ordered access. The issue that Justice Spence had to decide was whether he was legally justified in doing so. He stated:

As I noted at the outset of these reasons, there is no dispute that father disobeyed the access order. Counsel agreed that the only thing that could save this disobedience from a finding of contempt, is a legal justification for disobedience, in this case, the legal justification that exposing P. to the continuing stress he allegedly felt as a result of having seen Mr. V. on November 12, 2012, would be emotionally harmful to him. However, the only evidence in support of that purported justification comes from father’s assertions. And since I have found those assertions to be untruthful, there remains no evidence that would support the argument that the father was legally justified in disobeying the court order.¹⁸ [Emphasis added.]

43I find beyond a reasonable doubt that Mr. Wilson wilfully failed to drive the children to Orangeville, knowing that this would have the effect of solidifying their residence with him and strengthen his case in support of a reduction of his child support obligations. I find it likely that he did so to establish a basis for renewing his motion to change Wein J.’s Order by securing sole custody and principle residence of the girls with him and reversing the payment of child support from paying set-off support to Ms. Wickham to requiring her to pay table child support to him.

44In Hefkey v. Hefkey, (2013), the Court of Appeal noted that the civil contempt remedy is one of last resort and should not be granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. With this in mind, I still find that a finding of contempt is appropriate on necessary on these facts.¹⁹

b) What penalty or remedy is appropriate?

45Ms. Wickham requests that the children reside with her in Orangeville. Caely is beginning grade 9 at a new school in any case, and Sydney is beginning College. For this relief, it is necessary for the court to undertake an analysis as to what parenting order is in the best interests of the children.²⁰ Pursuant to Rule 31(5) of the Family Law Rules, if the court finds a person in contempt of the court, the court may (d) “do anything else that the court decides is appropriate.” This includes varying a custody order.

c) What parenting order is in the best interests of the children?

46Children are entitled to have access to both their parents, to the extent consistent with their best interests.²¹ Custody and access issues are to be determined based on the best interests of the children, and not the interests of the parents.

47Misconduct by one parent toward another, and a deliberate breach of the court’s orders concerning custody, access, and the residence of the children, when it impairs the ability of the other spouse to exercise access to the children, is injurious to the long term interests of the children. The court must additionally consider the impact on the children of changing their primary residence.²²

48I will now review the evidence with reference to the factors which the CLRA, in section 24, directs the court to consider when determining what parenting order would be in the best interests of the children.

a) Love, affection, and emotional ties

49I find that the children have an underlying love and affection for both parents and that their emotional ties have been strained by Mr. Wilson’s failure to comply with his transportation obligations under Justice Wein’s Order, the ensuing tension between their parents and the lessening of their mother’s access to them.

b) Facilitating contact with the other parent

50The court, when making a custody and access order, whether pursuant to sections 20 and section 24 of the CLRA, “must give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. To that end, the court is required to consider the willingness of each parent who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that it conflicts with the child’s best interests.²³

51As for how the parties should share parenting of the children, I refer to the comments of McLachlin J., as she then was, in Young v. Young, where she discussed the “maximum contact principle,” in the context of an application under the Divorce Act.²⁴ Justice McLachlin, speaking for the majority of the Court, said:

... s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982) (at pp. 117-18).²⁵ [Emphasis added.]

52The CLRA sets out specific factors that the court should consider when determining what is in a child’s best interests. The CLRA does not include the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, as s. 16(10) of the Divorce Act does. Nevertheless, s. 20(1) and (4) of the CLRA require the court, if it finds that maximum contact with both parents is not in the child’s best interests, to explain why this is so.²⁶

53Justice Wein’s intention was to equalize the time the girls spent with each parent. She stated, in her reasons:

40Because the intention of the custody order is to roughly equalize the children’s time with each parent, the parents are deemed to have equal custody and should report to CTC that the child tax credit should be continued as it has been most recently.

43In considering the best interests of the children, in this case, it is clear that both children have strong emotional affection and loving ties to both parents. Their preferences are to see the parents equally, so long as the school driving can be accommodated….

46Custody will continue to be share by the parents. The children will have two residences, one with the mother and one with the father….

49….The schedule set out above, viewed on an annualized basis, and without counting hours, does provide the mother with a roughly equal amount of time with the children, particularly when it is considered that she will be responsible for medical and dental appointments and most of the out of school time. Accordingly, child support will continue to be paid on a set-off basis. [Emphasis added.]

54As it developed, Mr. Wilson did not do the driving he was ordered to do. He also failed to maintain financial support for Caely’s horseback riding which, as a result, she was unable to continue.

55I find that Mr. Wilson has continued to manipulate the children until they eventually succumb to his persuasion. Mr. Wilson, not satisfied with the order that required him to drive the girls to Orangeville three weekends a month, made a motion in 2015, to change the Order to one granting him sole custody and reducing the girls’ access to their mother to alternate weekends. Justice Baltman dismissed that motion, other than to make a minor consent variation of the pick-up time on Sundays.

56Ms. Wickham describes Mr. Wilson’s response to Justice Baltman’s decision in her affidavit dated December 14, 2016:

In the spring of 2015, the Applicant issues a Motion to Change, to change the shared parenting arrangement to sole custody so that he would be the party in receipt of child support. On February 25, 2016, Justice Baltman made a final Order keeping Justice Wein’s Order the same except changing the Sunday pick-up time. Although I agreed to the Sunday pick-up change in our Order, Justice Baltman stated in her endorsement that this change was primarily for the Applicant Father’s benefit rather than in the best interest of the children.

Justice Baltman also made it clear that she would not be addressing any other issues, but that the Applicant Father kept trying to “slide in” support payments.

While Justice Baltman was reading the endorsement on February 26, 2016, the Applicant stood up and stated that he would be seeing me again in court and left the court room before Justice Baltman could finish reading the endorsement. The Applicant could be heard in the hallway outside of the court room shouting profanities about the court.

The Applicant has no concern for the best interest of the children. The Applicant wrote a letter for my daughter, Sydney, and told her to sign it. The sole purpose of the letter was to change the shared parenting arrangement so that the Applicant would in turn be the one in receipt of support.

After I was provided with the letter I spoke to my daughter Sydney and she told me that the [sic] her Father told her to just sign the letter as his lawyer required it and that she could continue to see me whenever she wanted.

57Mr. Wilson, still not satisfied with the Order the court made, made a further motion on October 27, 2017, again seeking sole custody of the girls, primary residence of them with him, and a recalculation of child support so that Ms. Wickham pays him child support at the table amount.

58I have found that Mr. Wilson was without justification in interfering with Ms. Wickham’s access to the children since Baltman J. made her minor variation of Wein J.’s Order on February 25, 2016. In continuing to fail to comply with Justice Wein’s Order, even after the court’s warning to him on May 26, 2017, Mr. Wilson has demonstrated that he is unwilling to comply with the parenting arrangement that Justice Wein established with a view to maintaining balance in the children’s time with each parent. Due to Mr. Wilson’s continuous and intentional breaches of the parenting arrangement established by Wein J., I find that Mr. Wilson cannot be trusted to facilitate contact between the children and their mother

c) The children’s views and preferences

59The children are 14 and 18 years old and their views and preferences should be taken into account in the decision as to the parenting arrangements. Sydney is old enough that she can exercise her preferences more or less independently. I find that Caely’s views and preferences ought to be given less weight in the analysis as they have been tainted by Mr. Wilson’s manipulation and interference with the ordered custody and access arrangement. While Caely is old enough to express her views and preferences, they are but one of several factors to be taken into account in the CLRA section 24 analysis.

60Justice Wein’s reasons dated November 26, 2013, are telling, especially as it appears to this court, from observing and hearing both Ms. Wickham and Mr. Wilson in their self-represented submissions to the court, that their attitudes have not changed since 2013, and that the circumstances have changed only in the sense that Mr. Wilson’s manipulation of the girls has had a predictable effect on them, and that his failure to comply with Justice Wein’s order directing him to drive the girls to Orangeville and continue to support Caely’s horseback riding has eroded the girls’ relationship with their mother and Caely’s inability to enjoy her passion for horseback riding. Justice Wein wrote:

5Both children have independently advised the Children’s Lawyer that they wish to continue to go to their familiar schools in Brampton, which means that they would reside on school days with their father. However, they also wish to be with their mother as much as possible, at least three weekends a month, and wish to be equally with their parents when not in school. They also, particularly in the case of Caely, wish to maintain extra-curricular activities that have been undertaken with their mother. In Caely’s case, this involves frequent horseback riding lessons.

15It is quite apparent from the evidence that the girls are close to their mother, that they enjoy doing activities together, including knitting, sewing, and community service hours for Sydney and swimming and horseback riding for Caely. There is no doubt that she is a capable parent, even if in her evidence she at times focused on her own rights as against Mr. Wilson as opposed to the best interests of her daughters. Even Mr. Wilson agreed that Ms. Wickham is a good mother.

17[Ms. Wickham] feels that the girls’ father has created the stress that her daughters feel, but understands why they might want to remain in the existing school. She is concerned that the girls do not get along and are not [sic] controlled by their father. Mr. Wilson denies that Sydney bullies Caely and suggests that these are ‘just little tiffs’ with nothing out of hand.

19Ms. Wickham also had some concerns about the children being in a Catholic school when they rarely, if ever, attend the Catholic Church. This is because as a child she herself was sent to a Catholic school, but never felt she didn’t [sic] fit in because her family didn’t go to church. She points out that as a family the girls went to the public school in Caledon East. From his evidence, I conclude that Mr. Wilson’s decision to send the girls to Catholic schools was made primarily on the basis of the fact that these were the closer schools, and not for any strong religious reasons. Mr. Wilson stated that he didn’t feel the need to consult with her with respect to the change to the Catholic schools because he consulted with the children.

20From Ms. Wickham’s perspective, the father has manipulated the children by telling Sydney that he would have to disown them and would not see them, nor would they see her Brampton friends if she decided to go to the Orangeville high school, because he wouldn’t be able to get up to Orangeville. From Ms. Wickham’s perspective, the father has bullied and manipulated the children: she feels that her older daughter is afraid of him and her younger daughter feels concerned because the father just walks away when her sister is bullying her. Ms. Wickham has the impression that the children feel that they will never see their dad again, and that he will not provide any support if they say they want to live with their mother: while the latter is obviously incorrect, I accept that some inappropriate comments have undoubtedly been made by Mr. Wilson. He has admitted as much in his emails to the OCL and in his evidence.

21It is true that, as it turns out, the actions of the father, particularly at the early stages, have bent the status quo in his favour. However, it is also true that in failing to file an Answer to the original action, in failing to have the original ex party court order set aside, and even more recently in failing to provide the OCL with authorization until after the 2013 school year started, Ms. Wickham has to some extent been the author of the reality that the status quo has remained with the father.

24[Mr. Wilson] says it was only because he could not buy the Caledon East house privately that he was forced to move to Brampton where his work was. He explained the rigid routine he has in his house, with checklists, goals, and time tables, in support of the argument that he gives his children discipline and structure. Of that there can be no doubt. However, although he does not participate in the girls’ extracurricular activities, I am satisfied that he is an adequate parent and that the girls have a solid relationship with him. It is apparent that they are now doing well in school. While he does not participate in Caely’s horseback riding, he supports Ms. Wickham’s doing it since it is a passion for Caely. He does not see his marijuana use as a problem, because it is medically prescribed and he stays away from the children when he is smoking it.

]25] Of some concern to the court was Mr. Wilson’s acknowledgement that he may have told his children that Daddy would disown them if they moved. He says this was joking, or that he may have said such things as “go if you want to, stay if you want to, but whatever decision you make will be for four year and that ‘it might be best if they lived with their mother.” He lacks an understanding of what his comments and actions are doing to the emotional health of his children. He agreed that he got upset at the disclosure meeting and he acknowledged that he talked to the children about the meeting after he was told by the Children’s Lawyer not to: I do not feel he has any real insight into how he has attempted to bias his children or the pressure he is placing on them. Even recently he called the police when he came to Orangeville to get the children because he wanted it on the record that they were not answering the door and were possibly home without an adult (althea Sydney is 14).

25Mr. Wilson suggests that a fixed schedule with the mother having three weekends a month would be workable, but suggests that a Thursday to Monday schedule would not work because the driving is just too difficult. He feels that the driving schedule requiring him to participate is ‘not fair to him’.

32At the disclosure meeting in August, it was made clear by both the Chidlren’s Lawyer and the OCL investigator that there had been pressure placed on the children to decide where they wanted to reside. Accordingly both parents were clearly instructed to not discuss the report and not put any pressure on either child. However, as he openly acknowledged, Mr. Wilson disagreed with this advice, and was quite annoyed that the Children’s Lawyer was unable to make a recommendation. He testified that his expectation based on his discussions with the girls had been that they would recommend that the girls remain with their father during the school week, which they had discussed. Mr. Wilson went so far as to tell the OCL that they were not doing their job and after the meeting required Sydney to call the lawyer back. He also sent e-mails outlining his subsequent discussions with the girls. The father has also admitted to telling the girls that he might not be able to see them if they move to Orangeville and that as Sydney was entering high school it would be a decision that would last for four years. It appears that he does not understand the way he has been manipulating the girls, or the emotional harm he has done.

33When the November school interviews were conducted Sydney indicated that it was her parents who were upset, and not her, and that it was her father who had told her to call the Children’s Lawyer. By this time, she expressed the view that she would like to reside in Brampton, because most of her friends were there, and she didn’t like the drive or getting up early in the morning on the weeks she lived with her mom in order to get to school in Brampton by shortly after eight. She wanted to see both parents, but preferred to see her mother on most weekends to eliminate the school day driving.

34Caely was somewhat more emotional, and upset that the issue hadn’t been dealt with by that time. She clearly just wanted it to be over. She wanted the conflict between her parents to end. She thought she’d prefer to be in Brampton during the school week and with her mom on weekends. Both girls were comfortable with continuing the week-about access in the summer. Neither expressed a preference for living with one parent or the other; both just wanted the tension to end and the problematic early morning driving to end.

35At a second disclosure meeting on November 12th, the OCL took the position that the girls should live in Brampton during the school week, and should spend three out of four weekends with their mother and should share holidays equally. As well, during periods when they were not in school, they would be with each parent on a week about basis. Caely was hopeful that she could continue her horseback riding lessons although her dad had said they were too expensive. The OCL indicated that it would be beneficial to have both parents take her to the riding lessons, to show that they were both involved. [Emphasis added]

61I accept Ms. Wickham’s evidence that Mr. Wilson wrote a letter for Sydney and had her sign it in order to change the parenting arrangement. After the letter was given to Ms. Wickham, she spoke with Sydney, who informed her that her father told her just to sign the letter as his lawyer required it and that she could continue to see her mother whenever she wanted.

62Stephen Beck, on behalf of the Office of the Children’s Lawyer, attended the hearing of Ms. Wickham’s motion on behalf of Sydney and Caely Wilson. He advised the court that the children’s preference is to remain resident with Mr. Wilson in Brampton. When asked questions regarding the children’s best interests, Mr. Beck fairly pointed out that he had only just received the file (although the Office of the Children’s Lawyer advised the court on June 20, 2017, that they had sent it to him that day), and that his mandate was only to ascertain and present the children’s preferences, and not to inquire into their best interests or make any submissions regarding that issue.

63Having regard to Mr. Wilson’s repeated failure to comply with the obligation that Justices Wein and Baltman imposed on him, to drive Sydney and Caely to Orangeville so that they could exercise their access to their mother on three weekends each month, the only way in which Caely's relationship with her mother can effectively be maintained is to order that she reside principally with Ms. Wickham and attend school in Orangeville.

64Caely’s transition from elementary school to secondary school provides an opportune time to make this change without unnecessarily disrupting Caely’s schooling or her relationships with her friends.

d) Length of time the children have lived in a stable home environment

65The children resided with both parents during the summers since Wein J. made her Order on November 28, 2013. They moved to Brampton when their parents separated and Mr. Wilson moved to that city, but continue to spend time in Ms. Wickham’s home during the academic session, when their father chooses to drive them to Orangeville, and during the summers, when the week-about schedule is followed. They have a stable home environment in both households.

e) Ability and willingness of each parent to provide the children with guidance and education, the necessaries of life, and to meet any individual needs they have

66There is no evidence to suggest that either party is unable or unwilling to provide the children with the guidance and education they need or with the necessaries of life and to meet their needs.

f) Plans proposed for the child’s care and upbringing

67Ms. Wickham proposes that Sydney begin attending College, as planned, this month, and return to Ms. Wickham’s home in Orangeville on school holidays. She proposes that Caely have her principal residence with her in Orangeville and attend secondary school there. She states that Caely’s main interest is in biology and that the high school in Orangeville has an excellent program in environmental science.

68Mr. Wilson proposes that Caely attend a secondary art school in Brampton. He offers no evidence to suggest that this would be in her interest, and Ms. Wickham submitted that she is not skilled in art and that it is not a strong interest of hers.

69Justice Chappel, in Batsinda v. Batsinda, in 2013, made it clear that, absent an adjudication or a consent based on a determination or acknowledgement that the custody/access or parenting schedule is, in fact, in the best interests of the children, a temporary order, especially one that has prolonged a status quo that one of the parties imposed unilaterally when the parties separated, should not give rise to a presumption that must be rebutted.²⁷ Mr. Wilson, by refusing to drive the children to Ms. Wickham’s residence in Orangeville, and by repeatedly asserting, as he did even at the hearing of the motion, that he has custody of the children, unilaterally took matters of custody and access into his own hands. I adopt Justice Chappel’s analysis in support of my conclusion that in the face of evidence that the parenting arrangement that Justice Wein ordered in 2013 is not viable as a result of Mr. Wilson’s non-compliance with it, the children’s continued residence with Mr. Wilson, at the expense of their relationship with Ms. Wickham, brought about by Mr. Wilson’s non-compliance with Justice Wein’s Order, should not create a presumption that influences the court’s determination as to what parenting arrangement is in the children’s best interest.

g) Permanence and stability of each family unit

70I find that there is permanence and stability in both Mr. Wilson’s and Ms. Wickham’s family units.

h) The ability of each person applying to act as a parent

71While Mr. Wilson and Ms. Wickham are both able to act as parents, Mr. Wilson’s unwillingness to comply with Justice Wein’s Order substantially undermines his effective exercise of his ability in that regard.

72L'Heureux-Dubé J., with whom four of the seven justices of the Supreme Court of Canada agreed in Young v. Young, noted that determinations as to the best interests of children must take the needs of the custodial parent into consideration in relation to orders for access. She stated:

In assessing all the relevant considerations, courts must be careful that the ideals of parental sharing and equality do not overcome the lived reality of custody and access arrangements and that the child's needs and concerns are accommodated and not obscured by abstract claims of parental rights. … As Abella J.A. held in M. (B.P.) v. M. (B.L.D.E.),(1992), 1992 8642 (ON CA), 97 D.L.R. (4th) 437, for the majority, at p. 459:

[The best interests of the child] by no means excludes the parental perspective. The needs of children and their parents are obviously inextricable, particularly between children and the parent on whom they depend for their day-to-day care, where only one parent has this primary responsibility. The structure of an environment that fits the child's interests would undoubtedly be reinforced if the economic and emotional needs, especially of custodial parents, were factored in, given the symbiosis of their sense of well‑being….

In the final analysis, when considering the best interests of the child, it may be a virtue rather than a sin for the judge to be pragmatic and take into consideration both the strengths and shortcomings of the parties and the limits of human nature. To do so is only to recognize that, in some circumstances, the perfect may be the enemy of the good. Courts must always be mindful that not only the benefit but also the real cost and burden of all custody and access arrangements ultimately falls on the children themselves.²⁸ [Emphasis added.]

73The Supreme Court, in Gordon v. Goertz, in the context of a mobility motion under the Divorce Act, set out the following additional factors that the court should consider when determining the best interests of a child:

the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.²⁹

74Justice Wein ordered that Mr. Wilson and Ms. Wickham share custody of the girls. Mr. Wilson has not complied with that aspect of the Order. He has repeatedly failed to consult Ms. Wickham regarding changes in her access, curtailing his financing of Caely’s horseback riding, and choice of schools. As a further example, Ms. Wickham points out in her affidavit dated August 3, 2017, that Mr. Wilson told Sydney, without consulting Ms. Wickham, that Sydney could have his second vehicle if Ms. Wickham paid her car insurance.

75I find that the girls’ relationship with their mother is important to them, but that it has been undermined by Mr. Wilson’s non-compliance with Wein J.’s Order. I find that the only realistic manner of maximizing the girls’ contact with both parents is to order that their principal residence will be in Orangeville. While this change will entail some disruption to the children, this is the moment when such a change will be least disruptive. Sydney is beginning college and Caely is beginning high school. These changes already entail a change of schools and of friends, which will minimize the disruption that results from the change of residence itself.

76Ms. Wickham acknowledged that there will be some disruption in Caely’s life as a result of the change of community, but says that she believes that the transition can be managed successfully. After the week-about access that has occurred during the past summer, which Ms. Wickham submits was beneficial to Caely relationship with her, I find that this is likely true.

77I find that there is little likelihood that Mr. Wilson will comply with Justice Wein’s Order or do the necessary driving unless it is in his interest to do so. I find it likely that he will drive to Orangeville when necessary to exercise his own access to the children, but not otherwise. In these circumstances, I find that ordering Caely to reside principally with Ms. Wickham is the arrangement most likely to maximize the contact of the children with each parent.

78For these reasons, it will be ordered that the children’s primary residence will be with their mother, pending the completion of the Children’s Lawyer’s investigation and the hearing of Mr. Wilson’s motion to change in March 2018. No further penalty will be imposed on Mr. Wilson, beyond the costs of this motion.

CONCLUSION AND ORDER

79For the foregoing reasons, it is ordered that:

1. Mr. Wilson is found in contempt of the Order of Justice Wein dated November 28, 2013, by failing to transport the children to Orangeville, including on May 27, 2017, thereby undermining Ms. Wickham’s access to the children.

2. The Order of Justice Wein dated November 28, 2013, as varied by Baltman J. on February 25, 2016, is further varied by providing that Ms. Wickham shall have sole custody of Sydney and Caely Wilson, who shall have their principal residence with Ms. Wickham, effective immediately.

3. Caely Amber Wilson, born July 17, 2013, shall attend school in Orangeville.

4. Sydney Christine Wilson, born June 11, 1999, shall have access to Mr. Wilson at her discretion.

5. Mr. Wilson shall exercise access to Caely Amber Wilson as follows:

a. On alternate weekends, beginning September 15, 2017, from 5 p.m. on Fridays until 7 p.m. on Sundays. Mr. Wilson shall do the pick-up and drop-off of Caely.

b. On Tuesdays and Thursdays each week, from 6 to 8 p.m.

6. The other provisions of the Order of Wein J., as varied by Baltman J., shall remain the same.

7. All police forces in the Province of Ontario and Canada shall, pursuant to s. 36 of the Children’s Law Reform Act,

a. Enforce the provisions of this order;

b. Locate and apprehend the child(ren) and deliver them him/her/them into the care of the person whom this order authorize to have responsibility for them at the time; and

c. Enter and search any place, at any time of day or night, where the said police have reasonable grounds to believe the children may be, with such assistance and such force as are reasonable in the circumstances.

8. If the parties are unable to agree on costs, they shall deliver written submissions, not to exceed four pages, and a Costs Outline, by September 15, 2017.

Price J.

Footnotes

1. 1Family Law Rules, O. Reg. 114/99, Rule 31(1).
2. 2Children’s Law Reform Act, R.S.O. 1990, c. C. 12, s. 29.
3. 3Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, s. 24.
4. 4Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 47, 99; Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at p. 46.
5. 5CLRA, ss. 20(1), (4)-(5).
6. 6CLRA, ss. 24(1)-(3).
7. 7G.(N.) c. Services aux enfants & adultes de Prescott-Russell (2006), 2006 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.), at para. 27, per Blair J.A., followed in Hobbs v. Hobbs, 2008 ONCA 598, 240 O.A.C. 202, per Armstrong J.A., at para. 26.
8. 8Karar v. Ella, 2016 CarswellOnt 19823
9. 9Karar at para. 15.
10. 10Karar at para. 16.
11. 11Karar at para. 17.
12. 12Karar at para. 20.
13. 13Karar at para. 26.
14. 14Kassay v. Kassay, 2000 22444 (ON SC), 11 R.F.L. (5th) 308, [2000](Ont. Sup. Ct.), at paras. 15 and 18.
15. 15Morrison v. Charney, 2007 MBQB 47, [2007] M.J. No. 68 (Man. Q.B. (Fam Div.)), at para. 33.
16. 16Re Sheppard and Sheppard (1976), 1976 710 (ON CA), 67 D.L.R. (3d) 592 (Ont. C.A.) at 595-596; iTrade Finance Inc. v. Webworx Inc. (2005), 255 D.L.R. (4th) 748 (Ont. Sup. Ct.), at para. 8.
17. 17Brooks v. Vander Muelen (1999), 1999 14292 (MB KB), 141 Man. R. (2d) 25 (Q.B.) cited in A.G.L. v. K.B.D. (2009), 2009 14788 (ON SC), 65 R.F.L. (6th) 182 (Ont. Sup. Ct.), at para. 31.
18. 18R.(S) v. S. (J.), 2013 ONCJ 133, at para. 35.
19. 19Hefkey v. Hefkey, 2013 ONCA 44
20. 20Jones v. Jones, 2013 ONCJ 383, rev’d 2014 ONCA 822.
21. 21Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 46, 117-18.
22. 22Jones v. Jones, 2014 ONCA 822, at para. 9.
23. 23Young v. Young, at pp. 46, 117-18.
24. 24Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended.
25. 25Young v. Young, at pp. 46, 117-18.
26. 26Wiedrick v. LeMesurier (2006), 2006 919 (ON SC), 27 R.F.L. (6th) 312 (Ont. Sup. Ct.), per Wood J.
27. 27Batsinda v. Batsinda, 2013 ONSC 7869.
28. 28Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 68-69.
29. 29Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 49